It was reported on Friday that James Comey has declined to testify before the Senate unless he can do so in open session (and presumably only in open session). The motivation seems pretty clear: Comey wants his version of events aired in public and not kept under wraps or (the bigger issue, I think) subjected to the interpretations of senators who discuss the testimony with the press.
But this is a good moment to discuss a broader issue about Comey, which I think this illustrates.
I’ve been covering James Comey in various settings for more than a decade. I’ve always had a great deal of respect for his integrity and professionalism. Or at least I did until about six months ago. After he pushed the Clinton emails probe back into the national election on Oct. 28, in what amounted to an October Surprise, I said I thought he should resign. I still think that he should have resigned … then. But after President Trump was elected, the calculus changed significantly. Indeed, a few days before President Trump’s inauguration I wrote this on Twitter:”100% agree with this. Comey disgraced himself. By rights, should resign. Would be a disaster if he did.”
This has basically always captured my take on what happened in October. But these latest developments as well as this earlier history gets at the more important reasons that I think were behind it – indeed, why the Comey myth was the root of that terrible decision.
As I said above, I think Comey is a person of real integrity and professionalism. But like any public figure at the pinnacle of national prominence, that reputation, though I think based in reality, didn’t come into being fortuitously or without careful tending over time. He is the main author of and I sense wholly bound up with what I call the Comey Myth. To be clear, using the term ‘myth’ in this way doesn’t mean something that is false. A myth is a story that we tell about the past or the world or a person to wring meaning and coherence from it. It can never comprehend all the facts of the matter but it may well capture larger truths about it.
Back at some point in 2007, when we were in the thick of the U.S. Attorney Firings story there was a moment when Comey’s name came up but in an ambiguous way. It wasn’t totally clear whether he was one of the people who stood up to the politicals at the Bush DOJ or went along with them. A decade later, I can’t remember what the incident or story even was. But as I walking back to my apartment from our then offices I got a call from my colleague Paul Kiel telling me that a very prominent member of the American legal community wanted to talk to me.
I’d like to say I get these kinds of calls all the time. I don’t. I was actually a bit spooked. In any case, I took down the number and called this person when I got to my apartment. I didn’t have any idea what this person wanted to talk to me about. But it turned out that they were calling to vouch for Comey and in what turned out to be a pretty convincing way. It was convincing in part because of who this person was but also because of details they provided. I say this to give some insight into my take and explain why in most key respects I buy it, even as I think it was behind his most unforgivable decision.
The Comey myth rests on apolitical-ness, independence and integrity. The public first became aware of it because of his harrowing account of the notorious hospital bed standoff during President Bush’s first term. He gave his first public account of the incident in the Spring of 2007. It arose during the investigations tied to the US Attorney Firing Scandal, but the events described occurred in early 2004. Here’s how Paul Kane described a key part of the background of that testimony in 2013 …
Enter James Comey — and a then-little-known staffer, Preet Bharara. Bharara was senior counsel to Sen. Charles E. Schumer (D-N.Y.), the political pit bull who had led much of the DOJ probe in the Senate, and more importantly, Bharara had previously worked as a junior federal prosecutor in the Southern District of New York when Comey was the U.S. attorney there. (Previous U.S. attorneys in this plum post include Louis Freeh and Rudolph Giuliani — and the current occupant is none other than Bharara.)
What Bharara knew that the House Democrats didn’t know was that Comey wanted to tell this amazing story about a constitutional crisis in the hospital room of then-Attorney General John Ashcroft in 2004. So Bharara arranged for Comey to testify before a Senate subcommittee.
The usually loquacious Schumer stopped asking Comey questions and just let him give a long statement telling the tale of something that seemed like a movie plot. You could hear a pin drop in the Dirksen hearing room, and in fact we did, when one reporter — stunned at what he was hearing — literally just dropped his pen onto the press table.
Here’s some more on the Comey/Bharara relationship and Bharara ear for the cinematic moment, from a Jeff Toobin article in The New Yorker from last year …
“That was my hearing, chaired by Senator Schumer,” Bharara told me. He knew the witness well, because Comey had been the U.S. Attorney for the Southern District when Bharara was an A.U.S.A. there. “I talked to Jim the week before and said, ‘We’re going to have you come testify.’ ” In debriefing Comey before his testimony, Bharara heard a more extraordinary tale than he had expected. On the night of March 10, 2004, Comey had learned that Gonzales, then the White House counsel, and Andrew Card, the White House chief of staff, were heading to a Washington hospital, where John Ashcroft, the Attorney General, suffering from gallstone pancreatitis, was in intensive care. Gonzales and Card wanted Ashcroft to reauthorize a government surveillance program that Comey and his staff had concluded was unlawful. Comey and Robert Mueller III, the F.B.I. director, raced, sirens blaring, to beat Gonzales and Card to Ashcroft’s bedside. In a tense confrontation at the hospital, Ashcroft told Gonzales and Card that, since Comey was Acting Attorney General, the decision was his to make.
As Bharara recalled, “Jim told me the whole story on the phone, and the hair stood up on the back of my neck, because I realized what a significant story this was, and I was sworn to secrecy and nobody knew about it. I told Chuck. He was, like, ‘Whoa!’ ” In the days leading up to the hearing, Bharara and Schumer told no one about the revelation that was coming. “I was afraid that if the story got out of what Jim was going to say the Bush Administration would figure out a way to prevent him from testifying,” Bharara said. “We needed to preserve the element of surprise.”
At the committee hearing, Comey, under Schumer’s questioning, told the story of the bedside confrontation. It caused a sensation in the hearing room and in the press. “Russ Feingold” —the Wisconsin Democrat— “said after that that it was the most amazing and jaw-dropping hearing he had ever attended as a senator,” Bharara told me. “So that was my formative experience.” Less than two years later, when Barack Obama was elected President, Schumer recommended that he nominate Bharara as the United States Attorney for the Southern District.
Bharara has a quite different prosecutorial ‘legend’ which he cultivated over the years as U.S. attorney for the Southern District of New York. But, as anyone who observed Bharara’s tenure as U.S. attorney knows, it was just as much cultivated with a close eye to the media throughout. This background to the story fascinates me, these two now-ultra-prominent lawyers, realizing the dramatic potential of the story Comey had to tell.
In any case, what does this tell us about James Comey? The dramatic representation of the hospital bed standoff doesn’t take away from the fact that it was a high stakes and in many ways heroic moment. But I think the event itself, Comey’s account of it and more help us understand why he acted so unconscionably in October 2016 and how we may conduct himself in the weeks and months ahead.
My take is that Comey had three overlapping motivations. None of them were partisanship, as such.
First, I think the biggest driver was Comey’s cultivation and protection of his own reputation, the Comey myth. He wanted – at almost any cost – to avoid being attacked as ‘in the tank’ for the Clintons or for Barack Obama, the man who nominated him, or anyone else.
Second, I think Comey feared – probably with real justification – that if he didn’t send his October letter the news would leak and embarrass him. More sympathetically, he might have judged that a leak by politically motivated agents in the New York field office might be even more damaging and disruptive to the election than his letter. Regardless, he thought that if he didn’t go public his agents in New York – who I think were deeply politicized – would do it for him.
The third motivation may come closest to partisanship or perhaps be affected by it. And this motivation seems much more in play for the July press conference than the October letter. Comey was at some level, I think, simply offended by Clinton’s conduct and the sloppiness and weirdness of setting up her own private server to maintain control over her personal correspondence and in so doing risk exposure of classified or simply sensitive government information. When I say this is the closest to partisanship, I mean simply that Comey is a Republican and not just a nominal one. He contributed to the campaigns of both John McCain and Mitt Romney. So it’s possible that some dislike or political aversion to Clinton bled into this feeling of offense. Having said that, my first response when I heard that Clinton had her own private email server and had unilaterally deleted thousands of emails based on her own lawyer’s review of their content was basically WTF? That species of “WTF?” is not inconsistent with thinking the focus on the story was almost insanely overblown or that the idea that there was any criminal offense almost ludicrous.
In any case, the main driver of the key decision – the October letter to Congress – comes in those first two motivations. This is why I did then and will always think Comey’s action on Oct. 28 was unconscionable. He had a choice between following longstanding DOJ guidelines, even longer-standing departmental practice and simply common sense, or making certain his personal reputation for rectitude and independence was preserved. More specifically he wanted to avoid Republicans’ questioning his bona fides. The simple reality is that in political terms Republicans have, over the years, been far more aggressive and successful at doing this. The fear of leaks is just another route to the same end result.
One last dimension of this is that Comey was almost certainly assumed that Clinton would win. So it wasn’t just Republican attacks in the abstract. It was the very specific scenario of the Republican Congress finding out soon after Clinton’s election that Comey had ‘sat on’ possible new evidence against Clinton little more than a week before the election.
That must have been a difficult bind for Comey. But it shouldn’t have been a hard decision. Faced with choosing between what I think was unquestionably the correct and ethical decision and the one which would ward off challenges to his reputation and secondarily the FBI’s reputation, he chose the latter. Given the gravity and predictable consequences of the decision, his choice was and remains unconscionable. Whether he saw the choice in these terms or was so beholden to the myth of his own rectitude he saw it differently, I do not know.
Going forward, what I take from all of this is the following.
First, I suspect Trump offends Comey on a deep level and in many ways. To Comey’s cult of probity, discretion, independence and self-control, Trump embodies mercurial behavior, corruption, a militant disregard for all rules over the primacy of appetites and need. I think this played into Comey’s swipes at Clinton in July 2016, the slapdash, corner-cutting way of operating. With much more certainty, we can see that Comey has an eye for drama and the theatrics of justice. He will above all maintain what we might call authorial control of his own role in this unfolding drama. Until last week, Comey was known for the 2004 hospital bed stand off and then the October 2016 letter. Like Archibald Cox after the Watergate Era, I have little doubt he’ll now always be most associated with President Trump’s decision to fire him as director of the FBI.
Even if he thinks he had no better choice, Comey must realize that the October letter was a blotch on his reputation. Whether it was an impossible situation or a catastrophically bad decision, it’s not good either/way. Now he finds himself cast again in one of these public morality plays which come naturally to him and makes fertile ground for his public myth. It is his best and last chance to heal that damage and confirm his role in the public sphere. I have little doubt he’ll play it to the hilt.
He’ll probably do a good job of it.